President Obama’s Speech Czar
President Obama’s Secretary of Health and Human Services Kathleen Sebelius is still threatening to bankrupt insurance companies who tell their customers that ObamaCare‘s mandates will increase premiums by more than 2 percent, even though her department’s projections show that, starting this week, just one of the law’s new mandates will increase some premiums by nearly 7 percent.
In a CBS News story last week, Sebelius tried to defend those indefensible threats:
But don’t the insurance companies have a right to make their own analyses and claims to their customers?
“Absolutely, they have a right to communicate with their customers,” replied HHS Secretary Kathleen Sebelius. “We just want to make sure that communication is as accurate as possible.”
The government can and should police fraud — but that’s not what Sebelius is doing. She is suppressing legitimate differences of opinion in the pursuit of political gain.
What if the government had said, “Absolutely, CBS News has a right to communicate with its customers — we just want to make sure that communication is as accurate as possible”? Should the government be able to put CBS News out of business if it decides those communications are not as accurate as possible? How about the National Rifle Association? Should the next Republican administration be able to put the Center for American Progress, the SEIU, or The New York Times out of business if it decides their communications are not as accurate as possible?
You don’t have to oppose ObamaCare to see the danger here.
The Principle behind Campaign Finance Regulation
Democratic House leaders apparently have reached a compromise that may bring the DISCLOSE Act to a vote. The National Rifle Association, a group that enjoys some support from House Democrats, objected to the bill’s disclosure provisions. DISCLOSE’s authors have now agreed to exempt “organizations that have more than 1 million members, have been in existence for more than 10 years, have members in all 50 states, and raise 15 percent or less of their funds from corporations.” The National Rifle Association qualifies for the exemption. But you knew that.
I wonder what principle of campaign finance regulation justifies this exemption? Earlier the authors of DISCLOSE said the American people deserve to know who is trying to influence elections. Now it would seem that voters only need information about relatively small, young, geographically-confined organizations that receive more than 15 percent of their money from corporations.
There is no principle at stake here. The NRA had enough support to stop the DISCLOSE Act. House leaders had to compromise by cutting the NRA a deal, a special exemption from the proposed law. The deal does show, if nothing else, that House Democrats are really worried about new money entering the fall campaign. They are willing to go a long way — even as far as helping the NRA — to make sure other speech funded by businesses and groups is not heard.
Finally, imagine you are a member of a group not exempted from DISCLOSE. You have been treated unequally by Congress. The courts have said Congress can treat you unequally if they show that this exemption for the NRA has a rational relationship to an important government purpose. How does exempting older, bigger, more widespread groups with less than fifteen percent corporate funding help Americans cast an informed vote? Put another way, if the NRA deserves an exemption, doesn’t everyone?
NRA Cares More about NRA Than Gun Rights, Liberty, Professional Courtesy
Yesterday the Supreme Court granted the NRA’s motion for divided argument in McDonald v. Chicago. What this means is that Alan Gura’s 30 minutes of argument time on behalf of Chicagoland gun owners just became 20, with 10 going to former Solicitor General Paul Clement, whom the NRA hired at the last minute to pursue this motion and argument. (Full disclosure: Alan Gura is a friend of mine, and of Cato.)
The NRA’s motion was premised on the idea that Alan had not fully presented the substantive due process argument for selective incorporation of the Second Amendment — presumably out of an outsized concern for the Privileges or Immunities Clause arguments about which I’ve previously blogged and written a law review article. This is a highly unusual argument and is a facial slap at Alan’s abilities as an advocate. Sadly, it’s also typical of how the NRA has behaved throughout this case and before that during the Heller litigation — sabotaging Alan at every turn and showing again and again that, even in the face of winning arguments that fully support its legal positions, the NRA prefers to seek glory for itself rather than presenting the strongest case for its purported constituency of gun owners.
Alan rightfully opposed the NRA’s motion because the group’s participation at argument adds nothing substantive to the case. No one will ever know why the motion was granted, as the Court need not (and did not) provide any reasons. Nonetheless, it’s a safe bet that this is solely a testament to Clement’s talent and reputation (notably, the motion was not filed by any of the NRA’s other excellent attorneys, who briefed and argued their case in the lower courts and in a cert petition and brief before the Supreme Court).
I have great respect for Paul Clement, and have worked with him by filing amicus briefs in two cases he’s already argued this term, but I do take issue with his repeated suggestion that the motion’s purpose — and the reason behind its granting — was so that “all the avenues to incorporation, including the due process clause, are fully explored at the argument.” This kind of comment — again impugning Alan’s litigation strategy — is uncalled for, and renews concerns over the NRA’s conduct.
Throughout this case, Alan has consistently and forcefully advocated for the Second Amendment’s incorporation under the Due Process Clause. That didn’t change when his case was taken up by the Supreme Court. The thing is that the due process arguments are not all that complex, and simply do not merit the same care and attention in the briefs as arguments based on the Constitution’s actual text and history. A first-year law student who’s taken constitutional law – let alone a Supreme Court clerk – could write a due process incorporation argument in her sleep! In any event, the oral argument will be driven by the justices’ questions, not by any long soliloquies by counsel. Alan’s — and all attorneys’ — job is to be ready for anything.
If the NRA were concerned about the final outcome of the case, it would be unlikely to attack Alan’s strategy or question his preparation (an odd way to be “helpful” to one’s side). It is not a stretch to predict that this case will be favorably decided at least in part on due process grounds, however, so what we are seeing here is likely an attempt by the NRA to position itself as responsible for such a victory – and that Alan isn’t.
Ultimately, then, the NRA is engaging here in fundraising, not liberty-promotion or ethical lawyering.
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